JUST HEARD ONE OF MY COLLEAGUES talk over lunch (we do this weekly during the summer) about how the Supreme Court has eviscerated the Constitutional provision allowing defendants to confront witnesses against them. It’s a classic slippery slope, in which initially narrow exceptions have consumed the rule. Being a curmudgeonly textualist, I think “confront” means confront, and isn’t satisfied by things like “other indicia of reliability” or video monitors.

Interestingly, Justices Scalia and Thomas take more or less the same position, which had some of my traditional-lefty colleagues scratching their heads a bit. But in criminal matters, it’s not at all clear that strict construction is worse for defendants than creative judging.